Criminal
Law Class Notes
Today,
we’re finishing up the tools of criminal law.
Banks
claims that the “Peeping Tom” statute is overly broad, and thus it is [un]constitutional
[fixed typo 10/7/03 ed.]. What he means
by that is that some of the conduct prohibited is legitimately bad, but some of
it is entirely innocent conduct.
Banks
also argues that the statute is unduly vague.
Even
if we didn’t have the Due Process clause in the Constitution, the common law
requires statutes to be sufficiently definite.
It’s of little value to have a statute on the books in advance if, in
reading the statute, you couldn’t figure out just what it was you weren’t
supposed to do.
The
Supreme Court held that a statute must be sufficiently definite, but it doesn’t
require absolute precision. There must
be some sense of a “line” that you’re not allowed to cross.
The
court presumes that the statute is constitutional. The burden is upon the defendant to
prove that a statute is invalid.
The
court says that statutes must be strictly construed. This is equivalent to the doctrine of lenity. We give the benefit of the doubt to the
defendant.
The
court also claims that the intent of the legislature must be taken into account
when the statute is interpreted.
The
court says that if a statute is clear, you just do what it says. If it’s ambiguous, you look at legislative
intent:
-
Read the statute carefully.
-
Read the preamble of the statute.
-
Read the title.
-
Look at legislative history.
-
Look at common law.
-
Look at precedent cases.
The
“Peeping Tom” statute
The
statute’s language is gender-specific as far as the victim. That may speak to the wisdom of the statute,
but not to the clarity of the statute.
It
looks like the court “redrafts” the statute such that in some situations a
defendant will be found not guilty when under the language of the statute they
would have been found guilty.
Say
a burglar is peeping into a house to look for stuff to steal or to see if
anyone is home and there’s a woman in the house. Can the burglar be charged with peeping under
the original statute? Sure. But not under the judicial interpretation of
the statute.
Or
say for example you’re looking at a man but coincidentally there’s a woman in
the room. Under the original statute,
you would be found guilty, but under the judicial interpretation, you would be
found not guilty.
Also,
keep in mind that once the state Supreme Court has changed the statute through
its interpretation, we expect that everyone who is subject to the statute will
be on notice that it has changed. This
is a clear cut legal fiction.
What
about the phrase “legitimate expectation of privacy”?
Say
you’re walking down the street, and there’s a house where the blinds are open
and there’s a woman undressing. Say she
just forgot her blinds were open. Say
also that you intent to violate her privacy.
Did that woman have a legitimate expectation of privacy? You could argue either way, though there is a
clear-cut answer.
The
term “legitimate expectation of privacy” comes from the U.S. Supreme
Court’s interpretation of the Fourth Amendment prohibition on improper search
and seizure. There is a huge
volume of writing about this phrase.
These words have a specialized meaning. Using these words in the ruling incorporates
by reference a whole lotta case law.
This makes “fair warning” even more of a fiction.
The
abominable
and detestable crime against nature
How
could a law-abiding citizen found out what the heck this means other than from
statutes and case law?
Maybe
you could find out from the Bible. If a
majority of people in your jurisdiction know what the phrase means, then you’re
on safe ground and there’s fair warning.
Shortly
after the Vietnam War,
The
crime of ogling
This
was meant to be a serious assignment.
It’s hard to write down what ogling means exactly. The lesson of the assignment is that it’s
hard to tell people what’s prohibited.
It’s hard to write statutes! We
should have some respect for legislators, because what they do is tough.
Words are the most important
tool you’ll use as a lawyer.
Spell
stuff right!
Some
people gave a dictionary definition of ogling.
What
period of time constitutes “looking fixedly”?
What do we mean by “flirtatious”?
What
would it mean to look at someone in a “lustful manner”? How can you observe lustfulness? Does it have something to do with facial
expressions? If so, should we include
the facial expressions in the statute?
What
do we mean by “unprivileged”? Does it mean
without consent?
What
about giving examples? The examples
would have to be specific and exhaustive.
Also, if you say “ogling includes” it does not mean that you have
an exhaustive definition. There might be
other things besides the ones you’ve written down that you’re not supposed to
do.
How
about a full-scale statute? Note that
it’s helpful to include in the statute why exactly the legislature was
motivated to create that statute.
Maybe
we need to require that someone observes the ogling, but not necessarily
the person who gets ogled. Maybe it
shouldn’t be necessary to have anyone see at all (except as far as detection of
the offense).
Here’s
part of the problem: if you put in a length of time, that’s precise, but it
also allows for a loophole. If you’re
told that you can’t look at someone’s chest for more than 12 seconds, you’ll
look at it for 11 seconds and be safe.
The legislature has a strong incentive to come up with something that’s
not totally precise so that there isn’t a loophole for non-law-abiding
folks.
Paradoxically,
we don’t want to give too much notice, because it will open up a
loophole to bad behavior that falls just short of what’s forbidden.
It’s
hard to come up with a statute that will work!
It’s hard to avoid vagueness and overbreadth!
Next
time, we will look at the basic components of a crime.